9911796707
TMI Blog1976 (9) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Sales Tax Officer of Koraput I Circle at Jeypore. 2.. When the Sales Tax Officer initiated assessment proceedings under the Act, the petitioner-company took the stand that it was engaged in the manufacture of aero engines for the MIG fighter planes for the Union Government and delivery of the aero engines to the Government of India did not constitute "sale". Therefore, the petitioner was not a dealer and the Sales Tax Officer had no jurisdiction to make any assessment. The stand of the petitioner-company was overruled and assessments were completed for different periods, treating the petitioner as an unregistered dealer. Heavy penalties were imposed under section 12(5) of the Act. 3.. The petitioner appealed to the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been exercised in favour of a party, the same should not be lightly interfered with and much less in a writ proceeding. While not disputing these propositions, Mr. Murty for the petitioner contends that the impugned order is vitiated by arbitrariness, and jurisdiction has been exercised by assuming facts which are not on record. 6.. We extract below the whole of one of the applications filed on behalf of the State for condoning the delay "1. That the first appeal orders for the year 1970-71 were received on 7th January, 1974, in the office of the Commissioner of Commercial Taxes, Orissa. 2.. That there has been unavoidable delay of 81 days in filing of the second appeals. 3.. That the delay was unavoidable because of inevitable p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also the original assessment records on 4th December, 1973. The records were, however, received only on 6th January, 1974. The Additional State Representative was entrusted with the records received on 6th January, 1974, and it was only on 13th May, 1974, after making a detailed study that he suggested that second appeals be filed. Approval was given by the State Representative on 16th May, 1974, and after requisite processing, second appeals were filed on 28th May, 1974. 7.. Before the Member, Sales Tax Tribunal, a decision of the Patna High Court in the case of Baldeo Lal Roy v. State of Bihar[1960] 11 S.T.C. 104. was cited, wherein it had been said: "........In order that one can claim to get the delay condoned, he must show by his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records and this aspect of the matter has not at all received consideration in the hands of the Tribunal. In view of the fact that sixty days' time is available to prefer second appeal, the appeals if filed on 11th January, 1974, would have been in time. After the records were received on 6th January, 1974, time was still available to prefer appeals within the period of limitation. Notwithstanding the fact that time was fast running out, the Additional State Representative to whom the papers were endorsed sat over the matter till 13th May, 1974. The learned Member of the Tribunal dealing with the matter has observed: ".................The aforesaid narration of facts will show that the appellant through its officers were thoroughly dilig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be preferred. It was not for the Tribunal to assume that the Additional State Representative No. 1 lacked capacity and, if the officer indeed lacked capacity, it was for the appropriate authority concerned not to entrust such supposed heavy and complicated matter for being processed by him. The conclusion of the Tribunal that, in the facts of the case, the authorities of the State Government cannot be said to be lacking diligence is a conclusion which no reasonable person versed in law can come to. By judging the matter by application of tests in accord with human probability, the conclusion of the Tribunal cannot be sustained. Law is settled that when limitation sets in, acceptable explanation for every day's delay has to be furnished and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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